FAQ

What is the process of the New York State Constitutional Convention?

New York State voters are asked to vote November 7th on referendum Proposition 1. Voters will need to turn over the ballot in order to vote, yes or no.

If the referendum is approved, voters will elect delegates to the convention in 2018, fifteen of whom will be selected on a statewide basis, and 189 of whom will be elected in groups of three persons in each of New York State’s 63 State Senate districts. Unless the Legislature decides differently, the elections will be held according to existing rules for elections, with parties, party primaries, and possible independent candidates competing according to established rules.

The delegates will convene the convention in Albany in April of 2019. They may take as much or little time as they need to consider as many or as few issues as they see fit.

Finally, the results of the convention will be presented to the voters for final approval or rejection, in such manner as the convention determines.

Voters will be asked either to approve the convention’s proposed amendments as a whole or one-by-one, depending upon what the delegates decide. Depending upon the amount of time consumed in deliberations, the new provisions may be submitted to the voters either in 2019 or 2020.

Frequently Asked Questions:

Won’t the delegates elected just be “the same old crowd” of politicians? Isn’t that particularly true under the current delegate election process? And if that happens, won’t the convention just be a waste of time and money?

Answer:

That wasn’t the experience with the last convention, nor in any convention over the past century. In 1968, delegates were elected to the last convention held in New York State. While most delegates had some governmental experience, only 14 of the delegates were current legislators, while an additional 32 had previously so served, for a total of approximately 25%. The results of that convention – including provisions for women’s rights, educational opportunity, and environmental bill of rights, and major redistricting reform – further demonstrated that the delegates were most definitely not operating simply as a shadow legislature. Indeed, literally all of the most unique features of the New York Constitution – including provisions for local home rule and executive budgeting (1915), for protection of education, social services, workers’ rights and housing (1938), and for protection of the Adirondacks (1897) – were added to the document through a constitutional convention, not through initiative of the legislature.

The election of delegates in 2017 will be far more competitive than the last convention. The election of delegates in 1966 was largely a party affair, with less than half of the candidates having any challenge in a primary. In addition, virtually no candidate spent any money on any meaningful campaign. It is worthy of note, however, that the 1967 convention was initially called for a very narrow purpose, adjusting to redistricting requirements which had been imposed by the Supreme Court. In 2017, there is every reason to believe that the election of delegates will be far more contested and transparent. Citizens Union, among other organizations, will aggressively recruit and promote independent candidates for delegate, as well as support reform delegates in party primaries.The delegate elections in 2018 will afford reformers a unique opportunity to support and elect qualified candidates committed to issues of reform. All statewide officials and legislators will be preoccupied in 2018 with their own election and re-election campaigns. The opportunity to select three delegates in each Senatorial district will provide reformers with a once-in-a-generation opportunity to support candidates who are focused on issues of governmental reform rather than the usual give and take of the budget, political, and operational issues.As the office of the delegate will also likely exist for no more than a year, no candidate will run who is seeking to establish a career position in politics. The issues will be about government, and reformers should not miss the opportunity to focus on “our” issues.

The delegate election process can and should be altered by the legislature in 2018, well before the vote for delegates. Should it choose to do so, the legislature could and should significantly improve the rules for the election of delegates. Most importantly, the law should be changed to allow each voter to cast one vote for delegate in each New York State Senate district, after which the top three vote-getters will be elected. This change was recommended by the Gubernatorial Commission on the convention back in 1997 and would address questions of compliance of the election with the federal Voting Rights Act. It would significantly diversify the representation in the convention, thus avoiding “politics as usual.”

There are numerous structural differences between the operation of the convention and the “ordinary” operations of government which will ensure its independence. Consider:A unicameral body; no need for double passage or reconciliation; The delegates are focused solely on the Constitution and constitutional change; no preoccupation with the ordinary issues of budgets, State operations, etc.; There are no seniority rules for leadership and committee chairs; There is no separation of powers principle; members of the judiciary and executive may participate.

Will a convention just be a waste of time and money?

Answer:

Reports regarding the cost of the convention have been severely distorted. It has been commonly reported that a convention might cost as much as $350 million in State expenditures. This accusation is absurd. The 1976 convention cost approximately $7 million, which might be “grossed up” to a total of $47 million after adjustment for inflation. The $350 million figure has absolutely no basis in fact.

Isn’t there a danger that the convention may be “captured” by billionaires who will pour vast sums into the support of delegates who support their point of view?

Answer:

No one, of course, can predict exactly how much money may be spent by whom in support of candidates for the constitutional convention. And, yes, of course, money may play a significant role in the election of delegates for the convention, just as it does in every election. Money is already “here” in New York elections, with over $52 million being spent on the last race for Governor alone. There is no reason, however, to suppose that the election of delegates will be susceptible to “capture” any more than the results of any other election. Indeed, since the delegates will have no desire for election in order to secure a “career” as a politician, it is likely that money will have less, not more, influence in this election than in others. Again, the question is whether we can trust democracy to produce fair results. If we fail to take this chance to reform democracy now, however, we can only be sure that the problem of money in politics will grow worse, and worse, and worse, as time goes on. Now is the time to address the potential loss of democracy by adopting firm principles for its protection, such as public financing of elections, a full disclosure of all contributors, independent redistricting, etc. Without a convention, none of this will ever come about. No one can promise a risk-free election, but the risk has been vastly overstated, while the benefits have been ignored. Finally, we must remember that any proposals must be approved by a majority of voters throughout New York State in a separate referendum. Any attempts to adopt “extreme” measures supported only by a few may and will be rejected by the electorate as a whole.

Hasn’t the constitution already been amended hundreds of times upon initiative of the legislature, and isn’t that an adequate method by which to make more measured amendments now?

Answer:

Certainly the Constitution has been amended through proposals by the legislature – over twenty such amendments have been considered in the past twenty years alone – but most of these have been for technical corrections, such as to allow the sale of small parcels of land in the Adirondacks, or to permit the electronic distribution of bills of the legislature. The proposal of constitutional amendments by the legislature, however, has failed to address fundamental issues such as the reorganization of the courts, the proper role of localities versus the state in government, or questions of elections, ethics or campaign finance. These issues are squarely rejected by our current politicians, as they would clearly threaten the existing process through which those politicians came to power. Only a convention can bring such issues to the fore. Past experience has shown that conventions are uniquely positioned to address fundamental change.

Consider the proposals of the past four conventions held:

1894: protection of the Adirondacks as ‘forever wild’; mandated public education at public expense

1915: administrative consolidation of 168 New York State agencies; executive budgeting process; strengthened home rule for cities [1]

1938: a “bill of rights” for labor; protection of care for the needy and housing; protection against illegal searches and seizures

1967: an independent redistricting commission; lowering the age for voting to 18; a right to clean air and water; prohibition of discrimination on age and sex

Wasn’t the 1967 convention largely dominated by the legislature itself? And weren’t the results widely considered to be a disaster, hence their rejection by a solid majority of voters?

Answer:

Only 14 (about 7%) of the 184 delegates elected in 1966 were sitting legislators. While it is true that the delegates elected the Speaker of the Assembly to serve as Chair of the Convention, most delegates were not elected officials in any capacity.

The issues addressed by the convention – while sometimes controversial – confirm that it was not wholly “captured” by any established political class. Among the recommendations were the following:

Redistricting of legislative seats would be done by an entirely independent, non-partisan body, not the legislature itself with its highly partisan politics.

The cost of social welfare would become a New York State responsibility, not a burden on counties where it contributed disproportionately to local property tax.

The prohibition of discrimination based upon sex.

Measures to empower localities on matters of community development and control.

Creation of a right to free university education.

Major changes to the administration of the judiciary (although preserving the election of most judges).

The elimination of the public referendum requirement for new State debt, in preference to control of debt by pre-established formulae.

Elimination of unnecessary items and reduction in the length of the Constitution by half.

While these measures were rejected by the voters, that was largely as the result of the absence of any organized support, and the decision by the convention itself to present its proposals as one single package, calling for a single up or down vote, despite inclusion of some highly controversial topics such as ending the prohibition of aid to parochial schools. Anyone opposed to any element of the proposal was thus required to vote against all. In 1917 and 1937, in contrast, proposals from the convention were presented to the voters on a one-by-one basis, resulting in many significant improvements to the constitution, including protection of the environment, for gubernatorial control of the budget, the care of needy, etc.

Have other states had either good or bad experience with constitutional conventions? What is the track record?

What practical proposals might be considered by a constitutional convention?

Answer:

The agenda for a constitutional convention will be established by the convention itself. Virtually anything thus conceivably could be addressed. It is far more likely, however, that the matters addressed will concern issues which have already been identified as problems with New York’s current constitution, or which concern problems that the delegates think need to be addressed on a lasting basis through constitutional change. Many possible issues have been identified by Professors Gerald Benjamin and Peter Gailie.While Citizens Union is concentrating on only a few of these proposals (chiefly concerning voting issues and government integrity) this list provides an overview of the kind of “structural” government issues which might be considered by a convention. The positions of Citizens Union are in bold.

HOUSE CLEANING

Consider:

Reducing the length of the document by eliminating redundant, obsolete and superseded provisions.

Bringing more coherence to the document by revising and rearranging current material.

INSTITUTIONS

Article II: Voting

*Permit “no excuse” absentee voting

*Eliminate party control of the State and county boards of election

*Mandate public financing of elections and full disclosure of the source of “independent” expenditures

Article III: The Legislature

The heart of any system of representative government is the legislative branch. Not surprising that it has received more attention than other branches of State government. To re-establish it, constitutional reform coming from an outside body is necessary. A legislature unwilling or unable to initiate that renewal needs help in rescuing itself.

Here are some lifelines for consideration:

Fix the size of the Senate by changing the apportionment requirements generally (which have been attempted at every convention since adopted in 1894).

Create an independent redistricting commission.

Strictly limit outside income.

Require full disclosure.

Create terms limits for leaders or members.

Enact campaign finance reform.

Restructure the process by which salaries and related benefits are distributed and raises granted.

Join the majority of states in differentiating the terms of the two houses of the legislature.

Reduce the size of the legislature (currently the fourth largest — although none of the three states having larger legislatures have greater populations).

Article IV: The Executive

Eliminate the message of necessity.

Gubernatorial succession — consider legislative involvement in the appointment of a new lieutenant governor when the lieutenant governor ascends to the governorship.

Eliminating the power of the lieutenant governor to assume the office when the governor is out of New York State.

Eliminate the pocket veto.

Departments — define the functions of the attorney general; eliminate departments specified in the Constitution, leaving them within the control of the legislature.

Article VI: The Judiciary

Complete the consolidation of the court system.

Leave jurisdiction in the hands of the legislature: Do we need the most detailed judiciary article in the country?

Equalize the size of the appellate departments, or restructure them so that all of the boroughs in New York City are subject to the same appellate law.

Eliminate elections for trial judges and explore alternative procedures. We have a constitutional provision that requires trial court judges to be elected by the people, but they are not. The promise of voter selection is belied by such practices as cross endorsements, and the reality that one party dominance in many areas means whoever the party nominates is the winner: There is no effective choice, the Constitution to the contrary notwithstanding.

Article VIII: Local Finance and Article IX: Local Governments

Address unfunded mandates.

Re-evaluate the use of the property tax as the primary source of revenue.

Bring the local finance law into the twenty-first century by eliminating dated exemptions, changing the debt limits to those based on personal income, etc.

Revisit debt and tax limits on local government: There are so many exceptions in the document that, when coupled with the use of local public authorities, debt extends much beyond the constitutional limits. So, although it is exempted debt for constitutional purposes, it is debt nonetheless.

Address the problems created by a local government “system” consisting of thousands of unit with overlapping jurisdictions and responsibilities, i.e., the issue of consolidation.

III. PUBLIC POLICIES

Article VII: State Finance

Revise the constitutional debt limit provisions, which appear to be at odds with the State’s debt-incurring practices. We have a Constitution that limits the general obligation debt the State can incur to debt approved by the voters in a referendum, but there is no institutional mechanism that limits the amount of debt the State can and does incur outside that provision.

Review the budget process and the current balance (or imbalance?) of power that exists between the executive and legislature.

Examine the State’s practice of using cash budgeting and various other practices that discourage transparency and accountability, allowing structural deficits to build while the State claims balanced budgets, a situation that threatens the long-term financial health of the State.

Authorities: provide more than one section to deal with these bodies.

Constitutionalize the Public Authorities Reform Act.

Article XVI: Taxation

Eliminate the constitutional protections for tax exemptions.

Article XI: Education: Include in the Education Article the court-ordered standard of a sound basic education.

Provide benchmarks or criteria for monitoring the State’s efforts to meet that standard.

Examine the status and role of the Board of Regents.

Article XIV: Conservation

Strengthen the conservation Bill of Rights section of the Conservation article.

Article XVIII: Housing

Afford counties the same incentives to participate in housing as cities and towns.

CHANGING THE CONSTITUTION

Article XIX: Amendments to Constitution

Review the process for selecting delegates.

Examine the “fox in the hen house” problem — public officials as delegates.

Create a permanent constitutional revision commission empowered to make recommendations for changing the Constitution directly to the voters.

Create a limited convention.

Many of the changes proposed by Citizens Union could be accomplished by simple legislation, and do not require constitutional change. As voting and campaign finance reform have been consistently advanced by the Assembly, for example, wouldn’t it be better for Democrats simply to focus on taking control of the State Senate in order to adopt these important reforms?

Answer:

While much voting and campaign finance reform could be accomplished by legislation, some items do require amendment of the existing constitution, while others are of sufficient importance as to justify a permanent, constitutional change. The current constitution prohibits “no excuse” absentee voting, for example, prohibits registration to vote less than ten days before an election and, perhaps most importantly, gives control of election machinery equally to the two major political parties, thereby ensuring much of the dysfunction that we experience today.

Other changes might be done by legislation, but have been met by the inexplicable refusal of the legislature to take action. There is no reason, for example, that the State shouldn’t be requiring to ensure both early voting and, for those who appear on election day, a right to wait no more than an hour based on past experience. Campaign finance reform should dictate that the name of the principal persons or actual corporation engaged in commerce who fund political communication should be prominently displayed on the communication itself.Adequate public matching funds for modest contributions at a ratio of 6:1 based upon a commitment to limit expenditures has also proven highly effective in New York City and should be constitutionally enshrined.

As a practical matter, members of the legislature – both Democrats and Republicans – have demonstrated a repeated reluctance to advance common-sense reforms which threaten their preferred position. In 2010, for example, an overwhelming majority of legislators signed a pledge, advanced by former Mayor Ed Koch, to support redistricting to be conducted on a nonpartisan basis by an independent commission.When called upon to perform, the legislature defaulted on its pledge and proposed only partial constitutional reform which would not take effect until ten years later. The legislature’s utter failure to adopt any reasonable limits on campaign contribution – which are permitted at some of the highest rates in the nation – as well as to close the infamous “LLC loophole” indicates that the legislature itself is not, in fact, interested in fundamental reforms.

Polls consistently show that an overwhelming majority of Americans, as well as New Yorkers, believe that money has too much influence in elections and that fundamental campaign finance reform is long overdue [2]. The matter should be addressed in our Constitution, which defines the structures for democracy in New York State.

Would Legislators and judges elected to the convention, receive double pay and pension benefits?

Answer:

Legislators and judges elected to serve on the convention will receive compensation and pension benefits for their work as delegates that is in addition to their regular pay — this compensation is protected in the constitution.

On balance, however, we believe that the problem should not be the reason for prohibiting a convention. New Yorkers can be made aware of such prospective double-dipping, which will be a strong reason to prohibit legislators, in particular, from engaging in the practice.

How would the results of the convention be submitted to voters following a convention? When would that occur?

Answer:

The manner and timing through which the results of the convention will be presented to the voters for approval will be determined by the convention itself. In 1967, the convention decided to submit its proposals as a single item, to be voted up or down. As this decision was widely decried throughout the State, it is the largest supposed reason for the defeat of that constitution. In 1938, in contrast, nine proposals were submitted for approval by the electorate, of which the voters approved six. Given this history, it is highly likely that the convention would determine to submit its major proposals in digestible bundles.

The referendum for approval of the convention results can be held no sooner than six weeks following the conclusion of the convention itself. Submission for approval in 2019, therefore, would require the convention to conclude all of its work by late September and then rush to educate the public in only six weeks’ time. Again, the attempt to do so in 1967 was considered to be one of the principal reasons for the overwhelming rejection of the new constitution. Given all of the circumstances, it is more likely that the referendum would be held in conjunction with the 2020 general election.

Many unions of public employees have urged opposition to the convention out of fear that it will rescind current protections for public pensions. Is this a legitimate fear?

Answer:

While, again, no one can guarantee any result from a convention, the prospect of such a change is exceedingly remote. There is no significant movement now to rescind pension protections, such as might be advanced by a constitutional amendment through the legislature. Unlike many other States, moreover, the pension funds of New York’s State and local employees are generally well-funded and present no current crisis [3]. It is thus difficult to imagine a successful campaign which would elect delegates committed to rescinding this fundamental protection.

One should also consider that a convention might adopt positive measures to further protect pensions, such a requiring that all pension obligations, of both public and private employers, must be fully funded in accordance with accepted actuarial principles. New York could thus permanently avoid the dilemma with which many other states and localities are now confronted.

Should there be a concern about opening up the constitution to change?

Answer:

Citizens Union will not support any effort to weaken the fundamental rights and protections already provided in New York State’s Constitution.
After a YES vote, Citizens Union will work to ensure that the convention focuses on a platform for democratic reform. Though an unlimited Constitutional Convention does allow the ability to change currently codified protections, we believe the opportunity to construct governmental systems that improve representative democracy through increased accountability, transparency, effectiveness, and ethical conduct is one worth taking. With a better functioning democracy, New Yorkers will create a more accountable State government that will more efficiently serve the public interest than ever before.

What practical difference will a constitutional convention make on the real issues of taxes, crime, housing, education, etc.?

Answer:

A convention may not deal with any of the day-to-day responsibilities of government. What it should do, however, is ensure that government is responsive to the real needs of the people. At present, for example, legislators “listen” to donors and political bosses rather than the electorate. When running from gerrymandered districts, legislators are responsive only to the wishes of the primary voters in their party, rather than to the electorate as a whole. When protected by the overwhelming advantages of incumbency, long-term legislators may not be sufficiently responsive to the needs ofthe people at all.

Constitutional reform may, in addition, seek to strengthen substantive rights such as for civil rights and environmental, health and social service protections, which can then be both held as standards and enforced by the courts.

[1] While the 1915 proposals were rejected by the voters, these and other reforms were subsequently proposed an adopted as individual measures.

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Vote Yes for a New York State Constitutional Convention by Citizens Union is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. Based on a work at http://citizensunion.org.